Most people know that apartment living is an entirely different ball game to living in a stand-alone house. Smoking in an apartment is just one of the many activities you need to think twice about when you’re in an apartment. Do you know with 100% confidence if you are legally permitted to smoke in your unit?
If you live in or own a strata title property, you know that you’re bound by a set of rules that don’t apply if you live in or own freehold or Torrens title property. “By-laws” are rules that all residents in strata buildings need to follow to manage the shared living environment, and it is vital that apartment residents abide by them to maintain a peaceful lifestyle with their neighbours.
As of November 2016, the NSW Strata Schemes Management Regulation introduced model by-laws that provided the following options in relation to smoking restrictions:
- An owner/occupier (or their invitee) must not smoke on common property or allow for any smoke to penetrate common property or any other lot; or
- An owner/occupier (or their invitee) can only smoke in designated smoking areas.
You can read more about this in our previous article here.
To cut a long story short, smoking can be banned but only in common areas of the building. This means that the Owners Corporation for your strata building can decide to adopt rules preventing you from smoking in shared spaces including the hallways, lifts, lobby area, and essentially any area that is outside the unit you own.
But does this mean that you can smoke in your own apartment unit? Not necessarily.
In the recent case of Pittman v Newport [2022], a lot owner was ordered not to smoke on their balcony (or allow others to smoke on their balcony) because the smoke was drifting into another resident’s home. The NSW Civil and Administrative Tribunal (NCAT) found that the cigarette smoke drifting into the other resident’s unit was a hazard and a nuisance under the Strata Schemes Management Act 2015.
The issue in this case was that the Owners Corporation had not put in place any smoke-free by-laws to govern the building. In this situation, neighbouring residents had to seek protection against smoke-drift under general nuisance laws in the Strata Schemes Management Act 2015 and the Residential Tenancies Act 2010. In the absence of by-laws, the affected residents had to escalate the matter by taking legal action and bringing the dispute before NCAT instead of resolving the matter internally through the Owners Corporation.
So… can you smoke in your apartment building? It depends!
- Do your strata by-laws have any provisions about smoking in common areas?
- Do your strata by-laws have any provisions about smoke drift?
- Are there designated smoking areas in the building?
- Is the smoke from your cigarette drifting into other people’s units?
How we can help
Still a bit hazy on the rules? Call us now on (02) 9199 8597 or email us to discuss your rights and obligations in a Strata Title building.If you are a member of the Owners Corporation and you do not have adequate by laws in place for your building, we can help you draft rules that will help all residents know how to manage living in their shared environment.
The information contained in this post is current at the date of editing – 3 October 2024.
